Beginning in 1983, however, the government expressed new concerns over alleged violations by the Soviet Union of the 1972 Convention. Convinced that "the Soviet Union has maintained its offensive biological warfare program and that it is exploring genetic engineering to expand [the] program's scope",
*fn3"
the Department of Defense in 1984 sought Congressional approval for the "reprogramming" of $8.4 million in previously appropriated military construction funds to renovate and expand the facilities at Dugway. See letter of Nov. 20, 1984, Caspar W. Weinberger (Secretary of Defense) to James R. Sasser (U.S. Senator and Ranking Minority Member, Subcommittee on Military Construction, Committee on Appropriations), App. to Plaintiff's Mem. Of the $8.4 million, $1.4 million was requested for the construction of a new Aerosol Toxin Test Laboratory, and the remainder for the construction of Toxic Agent Test Support Facilities.

According to the Department of Defense, the purpose of the Dugway modernization would not be to develop offensive biological weaponry, but merely to "develop and field adequate biological and toxin protection":

The Department of Defense has directed the modernization of Dugway Proving Ground to be able to test adequately whether our military equipment meets the threats posed by Soviet chemical and biological warfare capabilities.

. . . .

Our development efforts in this area are driven by the Soviet threat. To ensure that our protective systems work, we must challenge them with known or suspected Soviet agents. We have the capability to do this with many chemical agents; however, the unique characteristics of biologicals require an even higher level of containment. Currently we do not have a test chamber large enough to hold and thus challenge realistically our protective items, such as detectors, filters, etc., with biologicals and toxins. The Dugway Proving Ground facilities are designed to meet this need.

Congress has not only consistently supported the development of biological, toxin, and chemical protective capabilities, but has often directed or encouraged the Department to do more in this area. Such support has included directly that nuclear, biological, and chemical (NBC) protection be provided for combat vehicles; approving research laboratories; and appropriating funds for the development and acquisition of NBC protective material. Dugway is the principal test facility for this material.

The specifics of the DOD's modernization plan called for the construction of the new Aerosol Toxin Laboratory within an existing structure at a complex known at Dugway as the "Baker Laboratory". The proposed toxic agent support facilities were to be located eight miles from the Baker Laboratory. These facilities were not intended to support or service the Aerosol Toxin Laboratory.

The Aerosol Toxin Laboratory was designed to meet the most stringent government safety standards. Because the Army expected "at some future date Dugway [might] be required to test materials that have been genetically altered," DOD planned the Laboratory as a "Biosafety Level 4" or "BL 4" facility. Declaration of Amoretta M. Hoeber, para. 8; Environmental Assessment at 1-3. That classification meant simply that the laboratory would satisfy the National Institutes of Health [Safety] Guidelines for Research Involving Recombinant DNA Molecules. See 48 Fed. Reg. 24556, 24571 (June 1, 1983), amended at 49 Fed. Reg. 46226, 46282 (Nov. 23, 1984). Only four such "BL 4" facilities currently exist in the United States,
*fn4"
and none existed at Dugway when the proposal was submitted to Congress.
*fn5"

According to the Army's plans, the new laboratory would have an aerosol chamber area of 400 square feet, and a total size of 1408 square feet. Safety features were designed to include pressurized air locks, a biowaste sterilization system, highly sophisticated air exhaust filtration systems, and pressurized suits with separate air supplies for personnel.

In August 1984, DOD's request for reallocation of the $8.4 million was summarily approved as part of a larger $66 million "reprogramming" request. The funding requests were reviewed only by the chairman and ranking minority member of the Subcommittee on Military Construction. In accordance with 10 U.S.C. § 2804, the requests were approved without a formal vote, hearing, or debate.

As required by law, the Army promptly prepared a Record of Environmental Consideration containing an Environmental Assessment, a Finding of No Significant Impact, comments submitted by interested parties on the Environmental Assessment, and the Army's own review and response to the comments submitted on the Environmental Assessment. The Environmental Assessment concluded that the proposed activity "should cause no significant impact on the quality of the human environment." Environmental Assessment at 12. That conclusion was based largely on the Army's own assertion that the new maximum containment laboratory would not be used to conduct testing experiments that differed in any significant manner from the experimentation currently being carried out at Dugway's BL 2 and BL 3 laboratories:

Work in such a [proposed BL4] laboratory would involve the 'conventional' threat agents. . . . None of these threat agents absolutely require BL 4 containment.

. . . .

No pathogenic [disease producing] fungi have been used in the present facility for years; no use at DPG [Dugway Proving Ground] is projected. No recombinant DNA or "genetic engineering" work has been done, and none is projected.

Environmental Assessment at 1, 2. The central reason for building the new facility, the Army insisted, was to provide an "added margin of safety":

Expertise and facilities exist for testing with biological aerosols of pathogenic and non-pathogenic (simulant) microorganisms at the Biosafety Level (BL) 2 and BL 3. . . . However, much of the equipment and all of the facilities are over 30 years old. Frequent failures of the utility systems occur. Those involving the air and water systems have led to costly losses of instruments and tests, laboratory downtime and need for repairs. Although safety of personnel and the environment is not being compromised even under the current conditions, new equipment and instruments, and a BL 4 facility with modern features, would improve safety by providing state-of-the-art facilities and the latest in containment equipment, especially for tests with aerosols of pathogens in a chamber, and avoid the problems caused by the current inadequate building.

Environmental Assessment at 1. As designed, the proposed aerosol facility posed no significant environmental hazard because, the Army pointed out, similar containment facilities had been built and run with success in other parts of the country.

The plaintiffs' challenge to the Army's action, as set out in the briefs, developed in the evidence and argued at the hearing, is premised on three main contentions. First, the plaintiffs contend that, contrary to the Army's disclaimers, the construction of the new Aerosol Toxin Laboratory will result in a significant change in the type of testing conducted at Dugway for which an EIS must be prepared. The plaintiffs point out that by the defendants' own admission, Dugway's purpose is "to test military equipment to insure it meets the threats posed by Soviet chemical and biological capabilities." Given DOD's stated belief that "the Soviet Union . . . is exploring genetic engineering to expand [its biological warfare] program's scope," it is inevitable, the plaintiffs argue, that recombinant DNA research will be performed at the new laboratory to "meet the Soviet threat."

Third and finally, the plaintiffs insist that under the Supreme Court's recent opinion in INS v. Chadha, 462 U.S. 919, 77 L. Ed. 2d 317, 103 S. Ct. 2764 (1983), the Army's use of reprogrammed funds is unconstitutional. This claim was not raised in the plaintiffs' complaint. The plaintiffs moved to amend the complaint to include the claim almost immediately prior to the April 26, 1985 hearing. The Court concluded at the hearing, and so notified the parties, that the new claim exceeded the scope of the issues the parties had agreed to brief for the April 26, 1985 hearing and that they were prepared to present and argue that date. Accordingly, the amendment incorporating this claim was not permitted.

The first two claims raised by the plaintiffs, however, are ripe for decision. It is to these issues that the Court now turns.

II. Statutory Background and Standard of Review

A.

"Recognizing the profound impact of man's activity on the interrelations of all components of the natural environment," 42 U.S.C. § 4331(a), the 91st Congress enacted NEPA

to declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; [and] to enrich the understanding of the ecological systems and natural resources important to the Nation.

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on --

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

The thrust of this section, the Supreme Court has noted, is twofold: "to inject environmental considerations into the federal agency's decisionmaking process by requiring the agency to prepare an EIS," and "to inform the public that the agency has considered environmental concerns in its decisionmaking process." Weinberger v. Catholic Action of Hawaii, 454 U.S. 139, 143, 70 L. Ed. 2d 298, 102 S. Ct. 197 (1981). The required EIS, in the Court's words, is the "outward sign that environmental values and consequences have been considered during the planning stage of agency actions." Id. Disclosure of an EIS does not "necessarily dictate any substantive outcome," Morris, 714 F.2d at 274-75; rather, it simply makes the public "aware that the agency has taken environmental considerations into account." Catholic Action, 454 U.S. at 143; see Baltimore Gas & Electric Co. v. National Resources Defense Council, Inc., 462 U.S. 87, 97, 76 L. Ed. 2d 437, 103 S. Ct. 2246 (1983).

Under NEPA, the administrative agency has the "'initial and primary responsibility ' to ascertain whether an EIS is required." Cabinet Mountains Wilderness v. Peterson, 685 F.2d at 681, quoting Committee for Auto Responsibility v. Solomon, 195 U.S. App. D.C. 410, 603 F.2d 992, 1002 (D.C. Cir. 1979), cert. denied, 445 U.S. 915, 63 L. Ed. 2d 599, 100 S. Ct. 1274 (1980). Because section 102(2)(C) requires the preparation of an EIS for a major federal action only if that action "significantly affects the quality of the human environment," 42 U.S.C. § 4332(2)(C), a finding by an agency that the proposed action will produce "no significant impact" on the environment relieves the agency of its obligation to prepare an impact statement. An agency, however, cannot satisfy its responsibility under the Act by merely issuing a "conclusory statement" that the action does not significantly affect the environment. Foundation on Economic Trends, slip op. at 5. Rather, unless the "major federal action" falls within a "categorical exclusion," 40 C.F.R. § 1508.4 (1983), the agency must "support each finding of 'no significant impact ' with a 'concise public document '" generally referred to as an environmental assessment. Foundation on Economic Trends 756 F.2d at 147, quoting 40 C.F.R. §§ 1501.4(a)-(b), 1508.9. More specifically, the environmental assessment must "briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." Id. § 1508.9(1).
*fn7"

(3) as to the problems studied and identified, whether the agency made a convincing case that the impact was insignificant; and

(4) if there was an impact of true significance, whether the agency convincingly established that changes in the project sufficiently reduced it to a minimum.

Sierra Club, 717 F.2d at 1413; Cabinet Mountains, 685 F.2d at 681-82. At bottom, review of an agency decision to forego preparation of an EIS, and the application of the four-factor test, must be undertaken with a view merely to determine if the agency has taken the "hard look" at the environmental consequences of the action that NEPA requires. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 49 L. Ed. 2d 576, 96 S. Ct. 2718 (1976); Foundation on Economic Trends, slip op. at 14; Sierra Club, 717 F.2d at 1413.

III. Adequacy of The Environmental Assessment

A.

The plaintiffs' central contention focuses on the nature of the federal action they believe the Army has proposed. In the plaintiffs' view, the Army has proposed the construction of a facility that will, inevitably, be used to conduct tests involving genetic engineering. Recombinant DNA research, the plaintiffs insist, is precisely the type of "new and expanding technological advances" that so concerned the drafters of NEPA. Foundation on Economic Trends, slip op. at 5-6. Failure even to address the potential dangers of recombinant DNA testing at Dugway, the plaintiffs conclude, should constitute sufficient grounds on its own to require preparation of an EIS.

The precise scope of the proposed action was strenuously contested at the April 26, 1985 hearing. To support their contention that the Army is "disingenuously attempting to suggest that there is no new program involved for [the] . . . aerosol laboratory," Plaintiffs' Reply Mem. at 2, the plaintiffs cited statements made by Army representatives before Congress, and in the Environmental Assessment itself, affirming the Army's intent to do whatever testing is necessary to meet the "Soviet bio-threat". Specifically, the plaintiffs pointed to: comments made by Amoretta M. Hoeber, Principal Deputy Assistant of the Army for Research, Development and Acquisition, that "the Soviets are actively engaged in research and development of toxins as weapons", Declaration of Amoretta M. Hoeber at 2; Secretary Weinberger's Letter of Nov. 20, 1984 to Senator Sasser noting that the Soviets are "exploring genetic engineering" and that the Dugway facility is needed to "meet[] the threats posed by Soviet chemical and biological warfare capabilities"; statements made in an Army "Fact Sheet" submitted to Congress in support of the funding request noting that "in the area of chemical and biological defense, DPG [Dugway Proving Ground] has the mission to test military equipment to insure it meets the threats posed by Soviet . . . biological capabilities," and that the aerosol test facility will "allow for defensive studies of these biologicals which cannot be studied safely at a lower [BL 3 or BL 2] containment level"; and statements in the Environmental Assessment to the effect that (1) the bioagents used at the new facility "could involve laboratory operations that require the use of BL 4 containment", Environmental Assessment at 1; (2) that "without this project, it may be more difficult or impossible to . . . conduct tests with pathogens requiring containment more stringent than provided by BL 3", Environmental Assessment at 2; and (3) if an existing facility were to be used to perform the projected work of the new facility, "another BL 4 laboratory would have to assume the DPG workload." Environmental Assessment at 10.

The defendants responded by expressly denying that the proposed action involved any change in the Dugway testing program. In support of their position they pointed to statements in the Environmental Assessment asserting that "no pathogenic findings have been used in the present facility for years; no use at DPG is projected. No recombinant DNA or 'genetic engineering ' work has been done, and none is projected," Environmental Assessment at 2, as well as affidavits of Army officials disavowing knowledge of proposed recombinant DNA work. See, e.g., Hoeber Declaration at 3. In addition, the Army was careful to note that if new and different biological agents requiring BL 4 containment or involving genetic alternatives should be used in the future, an "appropriate environmental impact analysis" would be filed in conformance with NEPA and Army regulations: "All proposals for work beyond the scope described in the Environmental Assessment will undergo the appropriate NEPA process, with due attention given to the security status of any proposed action." Environmental Assessment at 3; see Army Regulation 200-2, Chapter 3; Hoeber Declaration at 3; Defendants' Mem. at 8.

Environmental Assessment at 10-11. No mention is made of the unique geographical characteristics of the surrounding area,
*fn9"
the degree to which the action is likely to be controversial, the extent to which the possible effects on the human environment are likely to be unknown, the long- and short-term effects of the action on the local region and "on society as a whole," the degree to which the action may adversely affect an endangered or threatened species, and the possibility, if any, that the action may threaten a violation of federal, state, or local laws or requirements imposed "for the protection of the environment." See 40 C.F.R. 1508.27 (1983). Indeed, as in Foundation on Economic Trends v. Heckler, the assessment does not even directly address the question of whether an EIS should be prepared.
*fn10"
See Foundation on Economic Trends, 756 F.2d at 154 ("such an inquiry is, of course, the ultimate purpose of an environmental assessment").

The fact that BL 4 maximum containment facilities have been operated safely in other locations has no bearing on the adequacy of this Assessment. As detailed in the regulations, what matters is the possible impact that this particular major federal action may have in the particular location for which it has been proposed. See 40 C.F.R. § 1508.27 (1983). Just as claims by the Army that Dugway testing -- even with the proposed facility -- will continue unchanged do not affect the standard governing the preparation of an environmental assessment, see supra, Part III B, so the safe operation of a similar facility in a different location does not affect the number and type of issues and concerns that the environmental assessment must address.
*fn11"

Without more, the Court cannot conclude that this Assessment "identifies the relevant areas of environmental concern" or takes a "hard look" at the environmental problem, as required under parts 1 and 2 of the four-prong Cabinet Mountains standard.
*fn12"

IV.

Balance of Harms

Having concluded that a violation of NEPA has occurred, the question remains whether injunctive relief in this instance is proper. Although an injunctive remedy does not "follow automatically" from every finding of a violation of NEPA, a presumption exists in favor of injunctive relief. State of Alaska v. Andrus, 188 U.S. App. D.C. 202, 580 F.2d 465, 485 (D.C. Cir. 1978); Jones v. District of Columbia Redevelopment Land Agency, 162 U.S. App. D.C. 366, 499 F.2d 502, 513 (D.C. Cir. 1974); Realty Income Trust v. Eckerd, 183 U.S. App. D.C. 426, 564 F.2d 447 (D.C. Cir. 1977). Courts have enjoined ongoing projects

Each case requires a "particularized analysis" of the violations that have occurred, and the "countervailing considerations" of the public interest. State of Alaska, 580 F.2d at 485. The injunctive remedy, if ordered, must not be overly broad:

When a court has found that a party is in violation of NEPA, the remedy should be shaped so as to fulfill the objectives of the statute as closely as possible, consistent with the broader public interest. . . . The court should tailor its relief to fit each particular case, balancing the environmental concerns of NEPA against the larger interests of society that might be adversely affected by an overly broad injunction.

In this instance an injunctive remedy is required. The NEPA violation involved here is substantive, not "technical." Cf. Friends of River v. FERC, 231 U.S. App. D.C. 329, 720 F.2d 93, 106-07 (D.C. Cir. 1983) (substantial compliance with NEPA in combination with futility of remand justifies approval of otherwise inadequate EIS). Although the Army has not proposed the use of genetically altered material in its testing program at the new facility, potential risks to the environment remain. Pathogenic agents and toxins, as well as non-pathogenic (simulant) microorganisms, will be used in the new aerosol facility. The possibility of an accident involving personnel, or exposure to the outside environment, while low in probability, does exist. Clearly the risks are serious and far-reaching. Such an accident could produce extraordinary, potentially irreparable, consequences. Given the deadly nature of the material being tested, considerations of the larger interests of society -- particularly concerns for public health and safety -- militate heavily in favor of enjoining construction. The second, third and fourth prongs of the traditional test for granting injunctive relief, therefore, are met. See Washington Metropolitan Area Transit Comm'n v. Holiday Tours, 182 U.S. App. D.C. 220, 559 F.2d 841, 842-843 (D.C. Cir. 1977); Virginia Petroleum Jobbers Ass'n v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (D.C. Cir. 1958) (the district court should consider (1) the plaintiff's likelihood of prevailing on the merits, (2) the threat of irreparable injury to the plaintiff in the absence of injunctive relief, (3) the possibility of substantial harm to other interested parties from the injunctive relief, and (4) the interests of the public).

Irreparable injury to the plaintiffs, and other interested parties, exists for a second reason. Should the defendants seek to proceed with the construction of the proposed facility, they must recognize that now is the appropriate time for filing an adequate environmental assessment, before an "irretrievable commitment[] of resources is invested in the construction of the proposed facility." Sierra Club v. Peterson, 717 F.2d at 1414; Scientists' Institute for Public Information v. AEC, 156 U.S. App. D.C. 395, 481 F.2d 1079, 1098 (D.C. Cir. 1973). It is imperative that the public, and the defendants, know before construction begins whether or not an EIS must be prepared, a matter that can be determined only upon the development of an environmental assessment which satisfies the law's rigorous requirements. If an impact statement should, in fact, be required, environmental studies would have to be undertaken before work on the laboratory began. Sierra Club, 717 F.2d at 1414.

[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 610 F. Supp.]

ORDER

Consistent with the Memorandum Opinion issued this date, it is this 31st day of May, 1985,

ORDERED that the plaintiffs' prayer for permanent injunctive relief be and hereby is granted as herein stated, and it is further

ORDERED that the defendants Caspar W. Weinberger, Secretary of Defense, and John O. Marsh, Secretary of the Army, be and hereby are enjoined, based on the present administrative record, from taking further action to advance the construction of the proposed BL 4 Aerosol Toxin Laboratory at the Dugway Proving Ground, Dugway, Utah.

IT IS SO ORDERED.

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